State of Washington v. Nikolay Ivanovich Kalachik ( 2021 )

FILED
DECEMBER 14, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 37346-1-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
NIKOLAY IVANOVICH KALACHIK, )
)
Appellant. )
LAWRENCE-BERREY, J. — Nikolay Kalachik appeals his conviction for first degree
rape. He argues the admission of his nontestifying accuser’s statements to a police officer
and a sexual assault nurse examiner (SANE) violated his state and federal constitutional
rights to confront his accuser. He also argues the trial court abused its discretion by
admitting these hearsay statements under the rules of evidence.
We conclude that the trial court abused its discretion by applying the wrong legal
standard for the medical treatment hearsay exception and the statements through the nurse
were inadmissible. We also conclude that the admission of the accuser’s statements
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through the police officer violated Kalachik’s constitutional right to confront his accuser.
Because these errors were not harmless, we vacate Kalachik’s conviction and remand.
FACTS
Around 7:30 a.m. on April 20, 2018, a young woman approached a courthouse
security officer in Vancouver, Washington, said she had been raped and kicked out of a
car, and asked for a deputy sheriff. The courthouse deputies were not on duty until 8:00
a.m., so the security officer called 911.
Officer Suvada1
Officer Kendrick Suvada of the Vancouver Police Department responded to the
call. He approached the woman, who we refer to by her initials as S.B. Officer Suvada
asked her if she was injured, and she said she was not. S.B. spoke very rapidly in an
excited and disorganized fashion. She told Officer Suvada she was taken to a place past
the Vancouver Port and raped by a man named Nikolay. He told her to get in the back
seat and he got on top of her to have sex. When he finished, he grabbed some wipes and
told her to clean up. She discarded the wipes outside of the car.
1
The facts in this section are those considered by the trial court when deciding
whether to allow Officer Suvada to testify about what S.B. told him.
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Officer Suvada asked questions about Nikolay. S.B. described him as a white
Russian man, really tall and big with black hair. S.B. gave Officer Suvada the telephone
number she had for Nikolay. Law enforcement later determined the phone number
belonged to Nikolay Kalachik.
S.B. showed Officer Suvada her hands and said her fingernails had broken off and
were probably in Nikolay’s car. Officer Suvada took a picture of her hands. He then
discussed the case with a detective, including where to find the discarded wipes.
Officer Suvada asked S.B. if she was willing to participate in a “rape exam.”
Report of Proceedings (RP) at 101. She answered yes. An ambulance drove S.B. to the
hospital, and Officer Suvada followed. They arrived at the hospital around 8:30 a.m.
Once there, Officer Suvada asked S.B. additional questions while they waited two
hours for the forensic nurse. By this time, S.B. had calmed down and her answers to
Officer Suvada’s questions were organized and rational. Despite being there for two
hours, S.B. did not seek or receive any medical treatment from hospital staff.
During this delay, S.B. repeatedly told Officer Suvada she wanted to leave the
hospital because she was afraid her roommates would find out she was cooperating with
law enforcement. She said it was taking too long and she was worried Nikolay would
find out she was reporting him, but she knew she needed to do it. Officer Suvada
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encouraged her to be patient and told her that they were trying to get the nurse there from
Portland as soon as possible.
Nurse Stern2
Around 10:30 a.m., SANE Cynthia Stern began S.B.’s exam. Nurse Stern works
for an agency that contracts with different area emergency departments to perform sexual
assault exams. When performing such exams, she obtains a patient history, which
includes asking what happened. This guides her exam in terms of looking for physical
injuries. In addition, she offers patients medication for sexually transmitted infections
and emergency contraception.
S.B. thoroughly described the assault to Nurse Stern. S.B. told the nurse she got
into Nikolay’s car at 5:45 that morning and he drove to the Port of Vancouver. During
this drive, he threatened to shoot or kill her, and he had her perform oral sex on him. He
then parked the car and got on top of her. She tried to protect and cover herself, but she
could not because he was too big. She did not know if Nikolay had ejaculated inside her.
Nurse Stern asked S.B. if Nikolay had threatened her. S.B. said Nikolay made a gesture
indicating he had a gun and he threatened to shoot her and blow her brains out. As she
2
The facts in this section are those considered by the trial court when deciding
whether to allow Nurse Stern to testify about what S.B. told her.
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described what happened, S.B. would cry at times and then calm down.
Nurse Stern saw a bruise on S.B.’s right thigh and an abrasion on her left thigh.
She swabbed S.B.’s vagina for suspect deoxyribonucleic acid (DNA) and noticed some
blood on the swab. S.B. said she had noticed some bleeding when she wiped herself
immediately after the assault.
That afternoon, Nurse Stern completed a 15-page report and submitted it to the
Vancouver Police Department. This report contained: (1) a detailed report of the incident
—including whether threats or force was used, and extensive quotes by S.B. describing
the assault, (2) information about where the assault occurred and the identity of the
assailant, (3) a detailed head-to-toe physical examination of S.B., (4) a description of
evidence collected (leggings, tank top, and forensic swabs), and (5) on the last page, a
section where a law enforcement officer could sign to signify who received the evidence
and at what time.
Police found wipes at the scene of the crime that tested positive for Kalachik’s
DNA. Kalachik’s DNA was also present on the swabs collected by Nurse Stern.
When police went to find Kalachik, they located him at his apartment. Police set
up a perimeter and used a loud speaker to call out to him. Kalachik ran out the back door,
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but when he saw police, he turned and jumped a fence to get back into his apartment. He
soon after gave himself up. Police found a B.B. gun in the trunk of Kalachik’s car.
Case procedure
The State charged Kalachik with rape in the first degree and rape in the second
degree. As the trial date approached, the State was unable to locate S.B. It therefore filed
a motion to admit testimony from Officer Suvada and Nurse Stern about what S.B. had
told them.
The State argued S.B.’s statements to Officer Suvada were admissible hearsay
under the excited utterance exception, ER 803(a)(2), and did not violate the Sixth
Amendment to the United States Constitution because the primary purpose for obtaining
the information was to resolve an ongoing emergency. Kalachik disputed both
arguments.
The trial court mostly granted the State’s motion with respect to Officer Suvada,
but excluded the statements S.B. made to him at the hospital. The trial court reasoned, by
the time S.B. spoke with Officer Suvada at the hospital, she no longer was emotional, and
she was conveying information in a very understandable fashion.
The State argued S.B.’s statements to Nurse Stern were admissible hearsay under
the medical treatment exception, ER 803(a)(4), and did not violate the Sixth Amendment
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because statements to healthcare providers typically are not testimonial. Kalachik
responded that there was no evidence that S.B. went to the hospital to obtain medical
treatment, so ER 803(a)(4) did not apply. He also argued the primary purpose of the
sexual assault exam was to obtain evidence for the State, not to provide medical
treatment, so admission of S.B.’s statements to Nurse Stern violated the confrontation
clause.
The trial court agreed with the State. With respect to the confrontation clause, it
found the primary purpose of the sexual assault exam was to obtain medical treatment,
and concluded statements for medical treatment generally are not testimonial statements.
With respect to the medical treatment hearsay exception, it found the primary purpose for
Nurse Stern’s questions and S.B.’s statements was for medical treatment. With respect to
the excited utterance hearsay exception, it found S.B.’s recounting of the events to Nurse
Stern caused S.B. to reenter a shocked state, so her statements were excited utterances.
It therefore ruled that S.B.’s statements to Nurse Stern were admissible.
The State never did locate S.B. At trial, the State called Officer Suvada and Nurse
Stern to testify about what S.B. had told them. Kalachik testified in his defense.
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Kalachik’s testimony
Kalachik and S.B. first met in early April 2018, after S.B. moved in with one of his
friends. That evening, after the three drank beer and drove to Oregon for cigarettes,
Kalachik and S.B. decided to continue the night by getting more drinks and driving to
Janzen Beach. The two had sex on an unoccupied boat, after which he dropped S.B. off
at the home of her friend, Victor. They met the following day, picked up drinks and went
to a park. They were intimate at the park, but did not have sexual intercourse.
Two weeks later, on April 20, Kalachik went to S.B’s home around 5:30 a.m.
Kalachik’s friend was sleeping, but S.B. was awake, so the two went outside to smoke
cigarettes. They got in his car, and Kalachik started to drive to Victor’s house, but S.B.
did not want to go there and she began to touch him. He drove toward the same park
where they had been intimate, but stopped the car on the side of the road because the park
was not yet open. S.B. performed oral sex on him and pulled down her pants for him to
get on top of her. As they began to have sex, he felt she was acting strangely, pulling him
toward her while also trying to use her shirt to cover her genitalia. Kalachik thought he
saw a rash on her genitalia, pulled out and ejaculated on her shirt. They both cleaned
themselves with wet wipes, which he told her to throw out the window.
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Kalachik described how he immediately became scared and angry that S.B. might
have a sexually transmitted infection that she tried to hide from him. The two began to
fight as he drove, and he eventually told her to get out of the car. At the time, they were
about a mile and one-half from the courthouse.
Closing arguments and verdict
After both sides presented their evidence, the trial court instructed the jury. One
instruction defined “consent.” Clerk’s Papers at 119. During closing, the deputy
prosecutor argued Kalachik did not have consent because he was threatening S.B. with
physical violence. The deputy prosecutor continued:
But you really don’t even get there because consent or proving lack
of consent is not an element to rape in the first degree, and it is not an
element to rape in the second degree.
You won’t see on those to convict sheets that I have to prove she did
not consent. The reason for that is somebody cannot consent once they’ve
been threatened. Once fear is in the room, there can be no consent. So with
that instruction, I mean, again she did not freely give consent, but other than
that, there’s nowhere to apply that instruction in the elements because we do
not have to prove that she didn’t consent.
RP at 828. Kalachik did not object to this argument.
The jury found Kalachik guilty of both rape in the first degree and rape in the
second degree. At sentencing, the trial court vacated the lesser verdict and imposed a
standard range sentence. Kalachik timely appealed.
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Appellate proceedings
This court stayed Kalachik’s appeal pending a decision and mandate by the
Washington Supreme Court in State v. Burke, 196 Wn.2d 712, 478 P.3d 1096 (2021).
Following that decision, this court lifted the stay and granted the parties permission to file
supplemental briefing addressing Burke.
ANALYSIS
Kalachik argues the admission of S.B.’s statements to Officer Suvada and Nurse
Stern violated his constitutional right to confront witnesses under the Sixth Amendment
to the United States Constitution and article I, section 22 of the Washington State
Constitution. He also argues the trial court committed evidentiary error when it admitted
the statements. Kalachik also argues the deputy prosecutor committed flagrant and ill-
intentioned misconduct when she informed the jury the State was not required to prove
lack of consent.
A. EVIDENTIARY ERROR CLAIMS
Kalachik contends the trial court erred by allowing Officer Suvada and Nurse
Stern to testify about what S.B. told them. He argues S.B.’s statements to both witnesses
were not admissible under ER 803(a)(2), the hearsay exception for excited utterances. He
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also argues S.B.’s statements to Nurse Stern were not admissible under ER 803(a)(4), the
hearsay exception for statements for medical treatment.
This court reviews a trial court’s evidentiary rulings for abuse of discretion. State
v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999). Abuse of discretion is found only
when the decision is “‘manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.’” State v. McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009)
(quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
“Untenable reasons include errors of law.” Cook v. Tarbert Logging, Inc., 190 Wn. App.
448, 461, 360 P.3d 855 (2015).
1. S.B.’s first statements to Officer Suvada were admissible under
ER 803(a)(2)
Hearsay evidence is generally inadmissible. ER 802. But ER 803(a) contains
various exceptions to this rule, based on the premise that evidence within those
exceptions is inherently reliable. One such exception is an excited utterance. An excited
utterance is a “statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.”
ER 803(a)(2). Hearsay is admissible under this exception if (1) a startling event occurred,
(2) the declarant made the statement while under the stress or excitement of the startling
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event, and (3) the statement relates to the event. State v. Magers, 164 Wn.2d 174, 187-
88, 189 P.3d 126 (2008).
Kalachik contests the second element. In determining whether the second element
is met, the critical question is whether the declarant was still under the influence of the
startling event or condition to the extent the statement could not have been the result of
fabrication, intervening actions, or the exercise of choice or judgment. State v. Woods,
143 Wn.2d 561, 597, 23 P.3d 1046 (2001).
Various decisions have upheld trial court rulings where the declarant’s excited
statements were made hours after the startling event. See, e.g., State v. Thomas, 150
Wn.2d 821, 853-55, 83 P.3d 970 (2004) (statement to friend by visibly shaken and fearful
murder witness made 90 minutes after shooting held admissible); State v. Guizzotti, 60
Wn. App. 289, 296, 803 P.2d 808 (1991) (statement to 911 operator by emotional rape
victim who hid seven hours from assailant held admissible); State v. Fleming, 27 Wn.
App. 952, 956, 621 P.2d 779 (1980) (statements to friend by scared rape victim three
hours after rape held admissible).
Here, S.B. said she was raped between 6 and 7 in the morning. About one hour
later, she spoke with Officer Suvada and told him what had happened. Officer Suvada
noticed she appeared alarmed, excited, and spoke very quickly in a disorganized fashion.
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This is sufficient to sustain the trial court’s ruling on this evidentiary issue. We conclude
the trial court did not abuse its discretion when it ruled S.B.’s statements to Officer
Suvada were admissible under ER 803(a)(2) as excited utterances.
2. S.B.’s statements to Nurse Stern were not admissible under
ER 803(a)(2)
As previously mentioned, the critical question is whether the declarant was still
under the influence of the startling event or condition to the extent the statement could not
have been the result of fabrication, intervening actions, or the exercise of choice or
judgment. Woods, 143 Wn.2d at 597.
Here, S.B. said she was raped between 6 a.m. and 7 a.m., and she spoke a second
time with Officer Suvada around 8:30 a.m. The trial court properly excluded this second
discussion because S.B. had calmed down and was able to organize her thoughts. She no
longer was under the stress of the exciting event. Two hours later, at 10:30 a.m., Nurse
Stern interviewed S.B. In the hours between 8:30 a.m. and 10:30 a.m., S.B. had the
opportunity to fabricate or exercise judgment. S.B.’s statements to Nurse Stern therefore
did not qualify as excited utterances. There is no legal authority, either cited by the State
or located by this court, which resurrects excited utterances after the declarant had calmed
down for a period of time. The trial court erred as a matter of law in concluding
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otherwise and, in doing so, abused its discretion. We conclude S.B.’s statements to Nurse
Stern were not admissible under ER 803(a)(2).
3. Legal error in applying ER 803(a)(4) to Nurse Stern
Another exception to the hearsay rule is statements made for purposes of medical
treatment. The scope of this exception encompasses “[s]tatements made for purposes
of medical diagnosis or treatment and describing . . . [the] general character of the cause
or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
ER 803(a)(4). Hearsay is admissible under the medical treatment exception if (1) the
declarant’s motive in making the statement was to promote treatment, and (2) the medical
professional reasonably relied on the statement for purposes of treatment. In re Pers.
Restraint of Grasso, 151 Wn.2d 1, 20, 84 P.3d 859 (2004).
Kalachik contends the trial court abused its discretion by applying the wrong legal
standard. He argues the trial court ignored the first element of the medical treatment
hearsay exception and conflated the second element of that exception with the
confrontation clause’s primary purpose test. We agree.
In making its ER 803(a)(4) ruling, the trial court commented:
The nurse here testified that the primary purpose is to provide
prophylactic medication options at the time of the interview that would
address potential [sexually transmitted diseases], emergency contraceptives,
. . . and to assess other injuries[—]here, some cervical bleeding as well as
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the fingernail removed, an abrasion and bruising on either of her thighs, the
front of her thighs.
....
And so the primary purpose . . . of her statements . . . describing the
incident do[es] relate to treatment. . . . That—those statements better enable
the nurse to assess whether she might benefit from some of these treatment
options. And so not only does the nurse state that that’s the reason and—
but the questions asked and the information gathered relate to treatment.
And so I think [ER] 803(a)(4) is satisfied.
RP at 184-85.
The trial court’s comments conflate the standards for admitting medical treatment
hearsay with the confrontation clause’s primary purpose test, which we discuss later. In
applying the wrong legal standard, the trial court abused its discretion.
Applying the correct legal standard, it is clear the medical treatment exception
does not apply. After the alleged attack, S.B. walked to the courthouse, not a hospital.
She asked for a police officer, not a doctor. Once Officer Suvada arrived at the
courthouse and asked S.B. a series of questions, he asked if she was willing to participate
in a “rape exam.” RP at 101. She agreed. Officer Suvada then called an ambulance, S.B.
got in, and the officer followed the ambulance to the hospital. Two hours passed between
when S.B. arrived at the hospital and when the sexual assault exam began. During this
time, S.B. did not seek any medical treatment. She became concerned that her roommates
might learn she was cooperating with law enforcement and repeatedly said she wanted to
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leave, but remained when Officer Suvada told her they were trying to get the nurse there
from Portland as soon as possible.
The State presented no evidence that S.B. made statements to Nurse Stern to
promote medical treatment. She never indicated any desire for medical treatment, either
before going to the hospital or while waiting at the hospital for two hours. She went there
because Officer Suvada asked if she would undergo a “rape exam,” and remained there at
the urging of law enforcement. Her concern at the hospital was that her roommates might
find out she was cooperating with law enforcement. We conclude that S.B.’s statements
to Nurse Stern were inadmissible under the medical treatment exception to hearsay and
that those statements should have been excluded.
Because S.B.’s statements to Nurse Stern should have been excluded under
evidentiary principles, we do not address whether those statements were also barred by
the confrontation clause.
B. SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES
Kalachik contends S.B.’s statements to Officer Suvada were barred under the
confrontation clause and the trial court erred by admitting them. We review alleged
confrontation clause violations de novo. State v. Wilcoxon, 185 Wn.2d 324, 329, 373
P.3d 224 (2016) (plurality opinion).
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The confrontation clause of the Sixth Amendment provides, “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him . . . .” This right protects a criminal defendant from defending against
testimony given out of court by witnesses who are unavailable unless the defendant had
the opportunity to cross-examine the witness at another time. Crawford v. Washington,
541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); Burke, 196 Wn.2d at 725.
Using a textual approach, Crawford determined that the confrontation clause
“applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’”
541 U.S. at 51 (quoting 2 Noah Webster, AN AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE (1828)). Only testimonial statements cause the declarant to be a “witness”
within the meaning of the confrontation clause. Davis v. Washington, 547 U.S. 813, 821,
126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006); Burke, 196 Wn.2d at 725.
Crawford and Davis advise how to answer the threshold question of whether a
statement is testimonial. “In general, where the statement is functionally trial testimony,
it is testimonial; where it is just a casual statement made to a friend, it is nontestimonial.”
Wilcoxon, 185 Wn.2d at 332. Crawford listed examples of testimonial statements,
including statements that declarants would reasonably expect to be used prosecutorially.
541 U.S. at 51. Generally, statements taken by law enforcement in the course of
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interrogations are testimonial, whereas casual remarks to acquaintances are not. Id. at 51-
52.
Constitutional error with respect to Officer Suvada’s testimony
Not all statements to law enforcement are deemed testimonial. One recognized
exception is statements to law enforcement officers to help resolve an ongoing
emergency. Davis, 547 U.S. at 822; Burke, 196 Wn.2d at 727. Courts look at four factors
when determining whether there was an ongoing emergency: (1) “the timing of the
statements relative to when the described events occurred,” (2) “the nature of what was
asked and answered during the interrogation to determine whether the elicited statements
were necessary to resolve a present emergency or merely to determine what happened in
the past,” (3) “the threat of harm posed by the situation as judged by a ‘reasonable
listener,’” and (4) “the level of formality of the interrogation.” State v. Reed, 168 Wn.
App. 553, 563-64, 278 P.3d 203 (2012).
Kalachik relies on State v. Koslowski, 166 Wn.2d 409, 209 P.3d 479 (2009), in
contending the statements were testimonial. In Koslowski, a woman was assaulted by
robbers and tied up. Id. at 414. Police officers responded to a 911 call reporting the
robbery but, by the time they arrived, the attackers were gone. Id. They asked the victim
a number of questions, including what had happened and any descriptors of the attackers,
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which she answered. Id. The victim was unavailable at trial and the trial court allowed a
police officer to relate her statements to the jury. Id. at 430-31.
The Washington Supreme Court reversed and held the statements were testimonial.
Id. at 432-33. The court noted, “[I]nitial inquiries at the scene of a crime might yield
nontestimonial statements when officers need to determine with whom they are dealing in
order to assess the situation and the threat to the safety of the victim and themselves.” Id.
at 425-26. However, the court cited examples where the initial inquiries were very short
and sought minimal detail. The Koslowski court distinguished its facts—where the victim
had the protection of police around her, from Davis—where the victim was alone and
reported the crime to 911. Id. at 426.
Officer Suvada’s questioning in this case is similar to Koslowski where officers
asked the victim for details when the attackers were no longer around. When S.B. spoke
with Officer Suvada, she was far away from Kalachik and under the aegis of police
protection. Objectively, there was no ongoing emergency. Officer Suvada’s questions
were about what had happened in the past, the name of the person who did it, and how to
locate him. During this questioning, there was no threat of harm to S.B. We conclude the
trial court erred when it ruled S.B.’s statements to Officer Suvada did not violate the
Sixth Amendment’s confrontation clause.
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C. CONSTITUTIONAL ERROR NOT HARMLESS BEYOND A REASONABLE DOUBT
A confrontation clause violation is presumed prejudicial unless the prosecution
proves “‘beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.’” State v. Jasper, 174 Wn.2d 96, 117, 271 P.3d 876 (2012) (quoting
Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). The
error is harmless only where “the untainted evidence is so overwhelming that it
necessarily leads to a finding of the defendant’s guilt . . . .” Koslowski, 166 Wn.2d at
431.
Here, without S.B.’s description of what happened through Nurse Stern and
Officer Suvada, the evidence to sustain Kalachik’s conviction is limited to the courthouse
security officer’s testimony that S.B. told her she was raped and kicked out of a car and to
descriptions of what witnesses observed about S.B.’s physical condition and demeanor.
But given Kalachik’s testimony, the evidence to sustain his conviction is not so
overwhelming that it necessarily leads to a finding of guilt. We conclude that the
constitutional error was not harmless beyond a reasonable doubt.
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CONCLUSION
We conclude the trial court erred when it admitted S.B.'s statements to Officer
Suvada and Nurse Stem. We vacate Kalachik's conviction for first degree rape and
remand. 3
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
WE CONCUR:
O)douJ~. fC {f
Siddoway, A.CJ
.f``.:r;
Fearing, J.
3Because we reverse on evidentiary and constitutional grounds, we need not
address Kalachik' s prosecutorial misconduct claim.
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